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EXPLAINED: What happens if you overstay your 90-day limit in Austria?

The Local
The Local - [email protected] • 23 Jan, 2023 Updated Mon 23 Jan 2023 10:27 CEST
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Be careful not to go over your 90-day limit in Austria. (Photo: JAVIER SORIANO / AFP)

Visitors to Austria from certain non-EU countries like the US and UK are subject to the 90-day rule, which states that they can only stay for 90 days out of 180. But how strictly is this rule enforced - and what happens if you end up overstaying?

For some non-EU citizens – which from January 2021 includes British nationals – the 90-day rule limits how long you can stay in Austria within 180 days without a visa or residency permit.

The limits are imposed on the so-called "visa-free group". As a result, citizens of certain non-EEA countries, including Canada, the United States, Brazil, Argentina, Australia and Japan, can enter and stay in the European Union (and other countries, including Switzerland, that are not part of the EU but belong to the border-free Schengen area) without the need to apply for a visa beforehand.

However, citizens of other countries, including Bolivia, South Africa (in fact, all African countries) and India (plus most of Asia), must apply for a visa even for short stays. In those cases, their stay could be as long as the permit allows them to stay.

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The 90-day rule does not apply in Austria to people with a EU passport or foreigners with a residency card in Austria.

You can use the European Commission short-stay visa calculator the see how many days you have left under a Schengen short-stay visa.

What consequences are there for overstayers?

If you spend more than 90 days in the EU or Schengen zone without a visa or residency permit, then you have officially overstayed.

And unlike the days when border control was simply a guard with a stamp, modern technology means that all passports are scanned (whether by you or a border guard) on both entry to and exit from the EU – making it obvious who has overstayed their welcome and impossible to slip through the cracks.

Officially speaking, the EU has a range of possible penalties for overstayers at its disposal, although, in practice, some countries are stricter than others.

Austria has historically been a less lenient member state regarding punishments and penalties and getting some flexibility or a visa extension could be complicated.

READ ALSO: Diversity and jobs: How migrants contribute to Vienna’s economy

Technically speaking, anyone who overstays the 90-day rule in an EU country can, in theory, be subject to the following penalties:

Fines – fines can be levied in addition to other penalties and vary according to country.

Deportation – if you overstay, EU countries are within their rights to deport you or give you a certain number of days to leave. However, in practice, deportation is rare for people who aren’t working or claiming benefits: instead, they are more likely to be advised of the situation and told to leave as soon as possible.

Entry ban – EU countries can impose a complete ban on re-entry, usually for three years, although it could be longer. A total ban is usually only put in place for people who have overstayed for a significant amount of time or broken the law while overstaying.

Prison sentences – in extremely rare cases, people who overstay their visas can face up to a year in prison. However, aggravating factors like working for several months or committing a criminal offence while in the country would likely be involved.

What are the consequences of overstaying 90 days in Austria?

Though the above rules and punishments are EU-wide, each member state has the autonomy to enforce them at its discretion.

Austria can be pretty strict. People could be hit with fines and an entry ban, though deportation (in German, Abschiebung) is usually reserved for cases when the person does not leave voluntarily and "on time".

READ ALSO: EXPLAINED: Which Schengen area countries have border controls in place and why?

Decisions are made on a case-by-case basis and people who comply with a final return decision within the set deadline usually have fewer problems than those who don't. The law allows Austria to issue deportation orders and entry bans and also states that the person could be ordered to "take accommodation in federal districts designated by the federal office until departure".

Austria has many issues and controversies with illegal migration, but most cases involve people not from visa-free countries. However, this makes it so that the country is one of the few in Schengen with border controls - also a contentious issue in Austria and the EU.

Even inside Austria, there are checks looking for illegal migrants (which, depending on the case, could be an overstayer). In June 2022, one case became particularly well-known when the police controlled 138 migrants on a train in Tyrol, and many didn't have any documents or did not have papers that allowed them to travel.

READ ALSO: ANALYSIS: Could Austria ever change the rules to allow dual citizenship?

The case concerned asylum-seekers, but borders and train checks are not uncommon in the Alpine country. Additionally, you are more likely to be asked for your papers if you are a person of colour, according to a study on racial profiling by the EU Fundamental Rights Agency.

The study showed that while 25 percent of the general population had been stopped by the police in Austria, 49 percent of the "clearly identifiable" persons from sub-Saharan Africa said they had been checked.

If you are overstaying, the odds of "getting caught" (even if you are unaware of your situation) are definitely higher in Austria.

The consequences, then, can vary greatly depending on how long you have overstayed, and primarily if you work or claim benefits in Austria.

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The Local 2023/01/23 10:27

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